Cmfg Life Insurance Company et al v. Credit Suisse Securities (Usa) Llc

Brief in Support of 151 Motion to Compel, Production of Certain Deposition Transcripts

W.D. Wis.July 10, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN CMFG LIFE INSURANCE COMPANY, CUMIS INSURANCE SOCIETY, AND MEMBERS LIFE INSURANCE COMPANY, Plaintiffs, v. CREDIT SUISSE SECURITIES (USA) LLC, Defendant. Case No. 14-cv-249-WMC CUNA MUTUAL’S MEMORANDUM IN SUPPORT OF ITS MOTION TO COMPEL CUNA Mutual respectfully moves the Court to compel Credit Suisse to produce the transcripts of highly relevant deposition testimony given by two non-party witnesses, Ronald Szukala and Diane Johnson, in other RMBS litigation against Credit Suisse. Both witnesses formerly worked for Credit Suisse’s due diligence vendors, which re-underwrote loans headed for securitization with the ostensible goal of identifying and removing those that did not comply with underwriting guidelines or were otherwise defective. In sworn affidavits that are now publicly available, both witnesses asserted that Credit Suisse employees intentionally interfered with their re-underwriting efforts in order to allow defective loans to be securitized-supporting CUNA Mutual’s claims of intentional fraud. The witnesses subsequently testified about their assertions at depositions where Credit Suisse’s counsel had the opportunity to cross-examine. CUNA Mutual has a substantial need for this undisputedly relevant testimony because it avoids the rule against hearsay, see Fed. R. Evid. 804(b)(1), whereas the witnesses’ affidavits may not.. Moreover, producing two transcripts with accompanying exhibits would impose minimal burden. Credit Suisse has nevertheless withheld both witnesses’ transcripts based on its claim that alleged Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 1 of 7 2 witness tampering in the underlying case renders their testimony unreliable and unduly prejudicial. That is not an appropriate basis to withhold relevant discovery. Even inadmissible evidence is discoverable if relevant, and Credit Suisse is free to make its arguments about admissibility and reliability at trial. If the Court does not compel Credit Suisse to produce these two transcripts, CUNA Mutual would be forced to re-depose the witnesses, which would needlessly waste time and resources. BACKGROUND CUNA Mutual specifically sought deposition transcripts from Credit Suisse’s other RMBS litigation through discovery. (Ex. 1, CUNA Mutual’s First Set of Consolidated Requests for Production Nos. 44 and 45.) It also separately offered a mutual exchange of deposition transcripts (and associated exhibits) from other RMBS litigation to improve efficiency and decrease the number of depositions that would need to be taken in this case. (Ex. 2, April 2, 2016 Letter from S. Strikis to B. Diessel at 5.) In exchange for CUNA Mutual agreeing to depose no more than five Credit Suisse witnesses, Credit Suisse ultimately agreed “to produce transcripts and exhibits from depositions in RMBS matters for all Credit Suisse [document] custodians and [ ] 12 additional individuals.” (Ex. 3, July 19, 2016 Letter from B. Diessel to S. Strikis at 3.) But Credit Suisse refused to produce the transcripts of deposition testimony given by two non-party witnesses, Ronald Szukala and Diane Johnson, in MBIA Ins. Corp. v. Credit Suisse Securities (USA), Index No. 603751/09 (Supreme Court of New York, County of New York). Ronald Szukala was Director of Underwriting for Lydian Data Services, a company that re- underwrote loans purchased by Credit Suisse for securitization. (Ex. 4, Szukala Affidavit at ¶¶ 3-9.) Mr. Szukala “oversaw the underwriting for all of Credit Suisse’s wholesale loans” and “served as the primary underwriting liaison between Lydian and Credit Suisse.” (Id. at ¶ 6-7.) In his publicly available affidavit, Mr. Szukala asserted that Credit Suisse sales personnel interfered with the due Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 2 of 7 3 diligence process and pressured underwriters to approve loans: “Credit Suisse sales and trading executives, particularly the sales [Account Executives (“AEs”)], routinely inserted themselves into the underwriting process to solicit and direct the approval of loans that did not meet underwriting guidelines, even when we had informed them that the loans were defective … [and] routinely directed us to approve loans that did not meet underwriting guidelines and which we had otherwise identified for decline.” (Id. at ¶ 25.) Mr. Szukala further asserted that “Credit Suisse discouraged me from declining loans because it … caused a great deal of friction particularly with the AEs.” (Id. at ¶ 23.) Diane Johnson was Director of Due Diligence for Ocwen, another company that re- underwrote loans slated for Credit Suisse’s RMBS. (Ex. 5, Johnson Affidavit at ¶¶ 4, 6.) In her publicly available affidavit, Ms. Johnson asserted that “Credit Suisse Account Executives … would constantly insert themselves into the due diligence process and attempt to convince Ocwen to waive conditions to the loan approvals identified and imposed during the diligence process … [and] would frequently directly call Ocwen due diligence underwriters and attempt to intimidate them into speeding up the review or approving bad loans.” (Id. at ¶ 27). Ms. Johnson further asserted that she “changed [the] phone numbers of my staff on numerous occasions due to the harassing calls from Credit Suisse Account Executives.” (Id.) Mr. Szukala and Ms. Johnson were questioned about their respective affidavits during depositions in the MBIA case. Counsel for Credit Suisse, which was a defendant in that case, had the opportunity to cross-examine both witnesses. Although Credit Suisse is in possession of the transcripts and accompanying exhibits, it has refused to produce them based on its assertion that there was “serious evidence of improper conduct by MBIA’s counsel in eliciting testimony from these and other witnesses in the MBIA matter, which the court found gave rise to a ‘reasonable suspicion of witness dissembling,’ [and] renders their testimony entirely unreliable and unduly Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 3 of 7 4 prejudicial.” (Ex. 6, January 13, 2017 Email from H. Valdes to C. Bell.) CUNA Mutual argued in a subsequent meet-and-confer that Credit Suisse’s assertion went to the weight of the disputed testimony, rather than its discoverability, but Credit Suisse reiterated via email on May 4, 2017 that it would not produce the transcripts. (Ex. 7, May 4, 2017 Email from H. Valdes to C. Bell.) LEGAL STANDARD Under Rule 26(b)(1), a party may “obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” “Information within the scope of discovery need not be admissible in evidence to be discoverable.” Id. The party objecting to a discovery request bears the burden of showing why the request is improper. Kodish v. Oakbrook Terrace Fire Prot. Dist., 235 F.R.D. 447, 450 (N.D. Ill. 2006); Sherman Park Cmty. Ass’n v. Wauwatosa Realty Co., 486 F. Supp. 838, 845 (E.D. Wis. 1980). ARGUMENT Credit Suisse cannot dispute the relevance of Mr. Szukala’s and Ms. Johnson’s deposition testimony. As evidenced by the assertions in their affidavits (see supra at 2-3), their testimony will provide important evidence to support CUNA Mutual’s allegation that Credit Suisse knowingly sold RMBS backed by defective loans that were misrepresented in the offering documents. CUNA Mutual has a substantial need for the deposition testimony because it avoids the rule against hearsay, see Fed. R. Evid. 804(b)(1), whereas the witnesses’ affidavits may not. See Winskunas v. Birnbaum, 23 F.3d 1264, 1268 (7th Cir. 1994) (“affidavits are ordinarily not admissible evidence at a trial”). Since there is no legitimate burden associated with producing two deposition transcripts and Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 4 of 7 5 accompanying exhibits, see Abbott v. Lockheed Martin Corp., No. 06-CV-0701 MJR, 2009 WL 839112, at *3 (S.D. Ill. Mar. 31, 2009), the Rule 26(b)(1) factors overwhelmingly favor production. Credit Suisse’s sole basis for withholding the transcripts-that alleged evidence of witness tampering in the MBIA case makes the testimony “entirely unreliable and unduly prejudicial”-is invalid. Credit Suisse’s objection goes to the weight that should be given to the testimony, not to its discoverability. See United States v. Hill, 749 F.3d 1250, 1259 (10th Cir. 2014) (the duty to “make credibility determinations” is the trier of fact’s “vital and exclusive function”). At best, the objection goes to admissibility, but information “need not be admissible in evidence to be discoverable.” Kuttner v. Zaruba, 819 F.3d 970, 980 (7th Cir. 2016). In any event, Credit Suisse’s objection is unfounded. The MBIA court issued no rulings on the reliability or admissibility of Mr. Szukala’s and Ms. Johnson’s testimony. Rather, the court found that Credit Suisse had “laid a foundation giving rise to a reasonable suspicion of witness dissembling,” and thus established a “substantial need” to obtain additional discovery of confidential communications between the witnesses and plaintiff’s counsel. (Ex. 8 at 5, Oct. 3, 2013 Decision and Order (emphasis added).) The Court reserved judgment on whether there was actually any misconduct, noting that “[i]f … the witnesses’ affidavits are truthful and a vetting of the witnesses’ testimony supports this, MBIA’s position will be bolstered.” (Id. at 6-7.) Credit Suisse had the opportunity to cross-examine Mr. Szukala and Ms. Johnson at their depositions in the MBIA case. Credit Suisse also had the opportunity to conduct additional discovery to supports its allegations of witness tampering. If Credit Suisse has evidence supporting the unreliability or inadmissibility of the witnesses’ testimony, it is free to challenge CUNA Mutual’s eventual use of the testimony through motions in limine or at trial. But it cannot use evidentiary objections as a basis to withhold relevant discovery. Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 5 of 7 6 Finally, the interests of efficiency strongly support an order compelling Credit Suisse to produce the two transcripts. Without them, CUNA Mutual will be forced to re-depose Mr. Szukala and Ms. Johnson about issues they already testified about nearly four years ago. Not only would these depositions waste the time and resources of the parties, but they would also impose an easily avoidable burden on the non-party witnesses. See Fed. R. Civ. P. 45(d)(1) (“A party or attorney responsible for issuing an serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”); Fed. R. Civ. P. 1 (Federal Rules of Civil Procedure “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”) CONCLUSION For the reasons above, CUNA Mutual respectfully requests that the Court compel Credit Suisse to produce the transcripts of deposition testimony given by Mr. Szukala and Ms. Johnson in the MBIA case, along with accompanying exhibits. Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 6 of 7 7 Dated: July 10, 2017 Respectfully submitted, s/ Steven M. Berezney Steven M. Berezney Michael E. Klenov John C. Craig Korein Tillery, LLC 505 North 7th Street, Suite 3600 St. Louis, MO 63101 (314) 241-4844 sberezney@koreintillery.com mklenov@koreintillery.com jcraig@koreintillery.com George A. Zelcs Chad E. Bell Korein Tillery, LLC 205 North Michigan, Suite 1950 Chicago, IL 60601 (312) 641-9750 gzelcs@koreintillery.com cbell@koreintillery.com Silvija A. Strikis (pro hac vice) Scott K. Attaway (pro hac vice) Thomas G. Schultz (pro hac vice) Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, DC 20036 (202) 326-7900 (202) 326-7999 (Fax) sstrikis@khhte.com sattaway@khhte.com tschultz@khhte.com Peggy A. Lautenschlager Lautenschlager Law Office 252 Sheboygan Street Fond du Lac, WI 54935 (920) 602-6194 lautenschlager@bauer-bach.com Counsel for Plaintiffs Case: 3:14-cv-00249-wmc Document #: 154 Filed: 07/10/17 Page 7 of 7 Exhibit 1 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN CMFG LIFE INSURANCE COMPANY, CUMIS INSURANCE SOCIETY, and MEMBERS LIFE INSURANCE COMPANY, Plaintiffs, vs. CREDIT SUISSE SECURITIES (USA) LLC, Defendant. Case No. 14-cv-249-WMC CUNA MUTUAL’S FIRST SET OF CONSOLIDATED REQUESTS FOR PRODUCTION Pursuant to Fed. R. Civ. P. 34, Plaintiffs (collectively, “CUNA Mutual”) request that Defendant Credit Suisse Securities (USA) LLC (“Credit Suisse”) produce the following documents in its possession, custody, or control within thirty (30) days. INSTRUCTIONS 1. The requests below cover documents generated during the period from January 1, 2005 to December 31, 2007, unless specifically stated otherwise. Those requests stating in parentheses “(through today)” cover documents generated from January 1, 2005 through today. 2. The requests below seek documents in the possession, custody, or control of Defendant Credit Suisse, which includes documents generated or maintained by their affiliates, agents, or alter egos, including Credit Suisse First Boston Mortgage Securities Corp. At a minimum, Defendant has the practical ability to control the documents of such affiliated entities. Thus, any documents responsive to the below requests that are technically in the possession of one of these affiliates must likewise be produced. 1 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 2 of 11 DOCUMENTS TO BE PRODUCED 1. The final loan tape for each Securitization. 2. The current loan schedule (through today) for each Securitization that contains, in addition to the loan-level data found in the final loan tape, up-to-date performance information for each Mortgage Loan. 3. Documents sufficient to identify the Originator, Seller, and current Servicer of each Mortgage Loan. 4. The most complete origination and servicing loan file for each Mortgage Loan. 5. The underwriting guidelines used to underwrite or re-underwrite each Mortgage Loan. 6. The working group list for each Securitization. 7. The draft and final Offering Documents for each Securitization. 8. Communications with CUNA Mutual concerning each Securitization (through today). 9. Documents and Communications concerning the origination or underwriting of the Mortgage Loans, including whether the Mortgage Loans were originated in compliance with applicable underwriting guidelines (through today). 10. Document and Communications concerning the acquisition of the Mortgage Loans, including all applicable bid stipulations and loan purchase agreements. 11. Documents and Communications concerning the representations and warranties made about the Mortgage Loans (through today). 12. Documents and Communications concerning your use of statistical sampling to identify Mortgage Loans for re-underwriting or Due Diligence. 13. Documents and Communications concerning Due Diligence on the Mortgage Loans, including the initial and final results of any Due Diligence reviews. 2 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 3 of 11 14. Documents and Communications concerning Due Diligence on the Offering Documents. 15. Documents and Communications concerning Due Diligence on the Originators or Sellers. 16. Documents and Communications concerning the expected performance of the Mortgage Loans or the Securitizations. 17. Documents and Communications concerning the proposed or actual ratings by the NRSROs of the Securitizations, including all information that you provided to the NRSROs about the Securitizations. 18. Documents and Communications concerning the actual performance of the Mortgage Loans, including delinquencies, defaults, and early payment defaults (through today). 19. Documents and Communications concerning potential or actual breaches of representations and warranties made about the Mortgage Loans (through today). 20. Documents and Communications concerning repurchase or put-back requests related to any of the Mortgage Loans (through today). 21. Documents and Communications concerning potential or actual fraud related to the Mortgage Loans (through today). 22. Documents and Communications concerning the methodologies or models used by NRSROs to rate the Securitizations, including how loan characteristics such as loan-to-value ratio, debt-to-income ratio, and owner-occupancy status influenced ratings. 23. All other documents concerning the Mortgage Loans and the Securitizations (through today). 3 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 4 of 11 24. Documents and Communications concerning the origination and underwriting practices of the Originators and Sellers, including their compliance with underwriting guidelines and their quality control processes (through today). 25. Documents and Communications concerning your evaluation or review of the Originators and Sellers as suitable counterparties. 26. Documents and Communications concerning the expected or actual performance of mortgage loans originated or sold by the Originators and Sellers. 27. Documents and Communications concerning potential or actual breaches of representations and warranties made by the Originators and Sellers (through today). 28. Documents and Communications concerning repurchase or put-back requests related to loans originated or sold by the Originators and Sellers (through today). 29. Documents and Communications concerning trends in your Due Diligence or re- underwriting results on mortgage loans originated or sold by the Originators and Sellers. 30. Organizational charts and employee rosters for all your affiliated business units involved in sponsoring, issuing, underwriting, or marketing RMBS. 31. Your policies and procedures applicable to RMBS, including the following: a. Origination or underwriting of mortgage loans; b. Acquisition or purchase of mortgage loans; c. Representations and warranties to be made about mortgage loans; d. Warehouse financing for mortgage loans; e. Designing, conducting, or overseeing the Due Diligence on mortgage loans; f. Creating, structuring, modeling, sponsoring, underwriting, and issuing RMBS; g. Evaluating, rating, or grading sellers or originators of mortgage loans; h. Marketing and sale of RMBS; 4 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 5 of 11 i. The creation, editing, approval or distribution of offering documents for RMBS; j. Seeking, procuring, or negotiating credit ratings by NRSROs; k. Monitoring or surveillance of RMBS and the mortgage loans collateralizing RMBS; l. Repurchase by sellers or originators of mortgage loans collateralizing RMBS; m. Risk management and legal compliance. 32. Documents and Communications concerning representations you made to investors or NRSROs about your Due Diligence processes, including at industry conferences such as ABS East, ABS West, and ASF. 33. Documents and Communications concerning the quality of work in the 2005-2007 period by any third-party due diligence firm (e.g., Clayton, Bohan Group, Watterson Prime) you hired to perform Due Diligence on any of the Mortgage Loans (through today). 34. Documents and Communications concerning the accuracy or reliability of any automated valuation model (“AVM”) you used to calculate or verify the value of the properties encumbered by the Mortgage Loans. 35. Documents and Communications concerning changes or proposed changes to the resources devoted to Due Diligence, including reductions to the staff assigned to conduct or oversee Due Diligence, or changes in the budget devoted to Due Diligence. 36. Documents and Communications concerning any actual or suspected misrepresentation, omission of material fact, or misleading statement in the Offering Documents (through today). 37. Documents and Communications reflecting any reason you had to believe that there were misrepresentations, omissions, or untrue statements of material fact in the Offering Documents (through today). 5 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 6 of 11 38. Communications with CUNA Mutual about RMBS, including your Due Diligence practices related to RMBS. 39. Internal Communications about CUNA Mutual’s potential or actual investments in RMBS. 40. Documents sufficient to show how you calculated the compensation-including bonuses, commissions, and incentive or performance based pay-of your employees who had a role in securitizing, underwriting, issuing, or marketing RMBS. 41. Documents sufficient to show the actual compensation for fiscal years 2005, 2006, and 2007 of your employees who had a role in securitizing, underwriting, sponsoring, issuing, or marketing RMBS. 42. Documents and Communications concerning any insurance policy or indemnity agreement to which you were a party and which concerns potential legal liability related to the Securitizations. 43. All versions of your document retention policies from January 1, 2005 through today. 44. Any transcribed or recorded statement or testimony (both paper transcripts and video, where available), as well as associated exhibits, provided to any Congressional body, the Financial Crisis Inquiry Commission, the U.S. Senate Permanent Subcommittee on Investigations, any state or federal agency, any state’s Attorneys General’s offices, a U.S. Attorney’s Office, the Department of Justice, the Securities and Exchange Commission, FINRA, or other law enforcement or regulatory body, concerning your sponsoring, underwriting, or issuance of RMBS during the 2005-2007 period (through today). 45. Any transcribed or recorded statement or testimony (both paper transcripts and video, where available), as well as associated exhibits, provided in any private or public litigation concerning your sponsoring, underwriting, or issuance of RMBS during the 2005-2007 period (through today). 6 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 7 of 11 DEFINITIONS 1. “Communication” (or any variant thereof) means any written or recorded verbal communication between or among two or more Persons, including by means such as letters, memoranda, telegrams, telecopies, telexes, e-mail, Bloomberg messages, instant messages, telephone, voicemail, video, or any other medium. 2. “Document” or “Documents” means “any designated documents or electronically stored information-including writings, drawings, graphs, charts, photographs, images, and other data or data compilations-stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Fed. R. Civ. P. 34(a)(1)(A). 3. “Due Diligence” means any analysis, investigation, or examination intended to verify the completeness or accuracy of information, such as whether RMBS offering documents were complete and accurate; whether mortgage loans securitized into RMBS were accurately described in offering documents; whether mortgage loans were originated in compliance with applicable underwriting guidelines; whether information in loan files conformed to information in loan tapes; whether mortgage loans complied with the representations and warranties made by any originator, seller, depositor, or sponsor; whether the appraised values of mortgaged properties were supported; and whether originators and their underwriting practices were accurately described. 4. “Mortgage Loans” or “Mortgage Loan” means all mortgage loans in the loan pools that collateralized the Securitizations. 5. “NRSRO” or “nationally recognized statistical rating organization” has the same meaning as in 17 C.F.R. § 229.1101(h) and includes organizations such as Moody’s, Standard & Poor’s, Fitch Ratings, and DBRS. 7 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 8 of 11 6. “Offering Documents” refers specifically to the offering documents for the Securitizations. Generically, “offering documents” includes the registration statement, base prospectus, computational materials, structural term sheet, collateral term sheet, free writing prospectus, preliminary prospectus supplement, prospectus supplement, and any combination thereof. 7. “Originator” includes any entity that originated and underwrote a Mortgage Loan, or on whose behalf another Person or entity originated and underwrote a Mortgage Loan. 8. “Person” means natural person, corporation, firm, company, sole proprietorship, partnership, joint venture, association, institute, or other business, legal or governmental entity or association, including any directors, officers, employees, agents, successors, predecessors, assignees, or representatives thereof. 9. “RMBS” means residential mortgage-backed securities. 10. “Seller” means any Person from which you, the Depositor, or the Sponsor purchased Mortgage Loans. 11. “Sponsor” and “Depositor” have the same meaning as when used in the Offering Documents. 12. “Securitization” or “Securitizations” refer to any or all of the eight securitizations at issue in the First Amended Complaint: CSFB 2005-FIX1, CSFB 2005-3, CSFB 2005-8, CSFB 2005- 9, HEMT 2005-4 HEMT 2006-3, WFMBS 2006-2, and BASF 2006-SL1. November 4, 2015 /s/ Silvija A. Strikis Silvija A. Strikis Scott K. Attaway Whitney Could Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC 8 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 9 of 11 1615 M St. NW, #400 Washington, DC 20036 (202) 326-7900 George A. Zelcs Korein Tillery, LLC 205 N. Michigan Avenue, Suite 1950 Chicago, IL 60601 (312) 641-9750 Michael E. Klenov Steven M. Berezney John C. Craig Garrett R. Broshuis Korein Tillery, LLC 505 North 7th Street, Suite 3600 St. Louis, MO 63101 (314) 241-4844 Peggy A. Lautenschlager Bauer & Bach, LLC 123 East Main Street, Suite 300 Madison, WI 53703 (608) 260-0292 Counsel for CUNA Mutual 9 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 10 of 11 CERTIFICATE OF SERVICE I hereby certify that on November 4, 2015, I served the foregoing CUNA MUTUAL’S FIRST SET OF REQUESTS FOR PRODUCTION TO CREDIT SUISSE on Defendant’s counsel via email at the following addresses: rclary@cravath.com mreynolds@cravath.com lmoskowitz@cravath.com onasab@cravath.com /s/ Silvija A. Strikis Silvija A. Strikis Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC 1615 M St. NW, #400 Washington, DC 20036 (202) 326-7900 sstrikis@khhte.com 10 Case: 3:14-cv-00249-wmc Document #: 154-1 Filed: 07/10/17 Page 11 of 11 Exhibit 2 Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 1 of 7 April 2, 2016 Benjamin Diessel, Esq. Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 Re: CMFG Life Insurance Company, et al. v. Credit Suisse Securities (USA), LLC, No. 14-cv-249-WMC (W.D. Wis.) Dear Ben: I write on behalf of CMFG Life Insurance Company, CUMIS Insurance Society, and MEMBERS Life Insurance Company (collectively, “CUNA Mutual”) concerning the status of discovery in the above-captioned matter. Over the past several weeks, the parties have exchanged numerous letters concerning various discovery issues, including (1) the custodians and search terms that CUNA Mutual will use to produce documents in discovery; (2) the custodians and search terms that Credit Suisse will use to produce documents in discovery; (3) the deposition transcripts from prior cases that the parties will produce; and (4) the use of the Loan File Reunderwriting Protocol (LFRP) in the reunderwriting process. The parties also met and conferred on March 23, 2016 to discuss these issues. I. Search Protocol Concerning CUNA Documents In its March 22, 2016 letter, Credit Suisse requested that CUNA Mutual use the same search terms and custodians that were used by the parties in CMFG Life Insurance Co., et al. v. RBS Securities, Inc., No. 3:12-cv-0037-WMC (W.D. Wis.) (“RBS”). As I explained during the parties’ March 23 meet and confer, the parties in RBS agreed to search terms and custodians on an iterative basis, and the final search terms and custodians that were used in RBS may not have been memorialized. Nonetheless, in the interests of compromise, CUNA Mutual will provisionally agree to use the same search terms in this case (to the extent those search terms can be identified from CUNA Mutual’s records relating to RBS discovery), modified appropriately for relevance to this action as to, e.g., Certificates at issue in this case.. This agreement is conditioned on Credit Suisse’s agreement regarding the other discovery issues discussed below. CUNA Mutual is continuing to research the search terms and custodians that were used in RBS, and will respond to Credit Suisse with a more specific set of search terms once it has completed its investigation. Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 2 of 7 Benjamin Diessel April 2, 2016 Page 2 II. Search Protocol Concerning Credit Suisse Documents A. Credit Suisse’s Document Custodians In its February 10, 2016 letter, Credit Suisse proposed to search for responsive documents from six custodians for each securitization at issue, along with one additional custodian - Jonathan Seed. See Feb. 10, 2016 Ltr. from B. Diessel to S. Strikis at 2. Credit Suisse thereafter suggested that it would consider adding Thomas Connors as a custodian. See Mar. 22, 2016 Ltr. From B. Diessel to S. Strikis at 3. Based on the parties’ discussion during the March 23 meet and confer, Credit Suisse’s proposal appears to be manifestly inadequate. For one, you explained during our call that Credit Suisse acquired and securitized loans through four separate “channels,” but Credit Suisse’s custodian proposal includes only one employee responsible for performing due diligence (Rachel Romero), and that employee’s involvement was limited to one of the four channels (the Bulk Channel). Moreover, you could not confirm during our call whether Ms. Romero was responsible for performing due diligence on every pool that Credit Suisse acquired through the Bulk Channel; indeed, you stated that this was unlikely. In contrast to the limited number of custodians that Credit Suisse has proposed, Credit Suisse’s Rule 26 Initial Disclosures - which purport to include “the name[s] . . . of each individual likely to have discoverable information . . . that the disclosing party may use to support its claims or defenses,” Fed. R. Civ. P. 26 - include more than 300 unique individuals, as well as an unspecified number of other “[i]ndividuals (identities to be determined) currently or formerly employed by or affiliated with” more than 50 different entities. Despite Credit Suisse’s representation that each individual listed in these disclosures has “discoverable information” that Credit Suisse “may use to support its claims or defenses,” Credit Suisse has refused to include these individuals as custodians. The basis for this refusal, as Credit Suisse explained in its March 22 letter, is that that the “inclusion of all individual listed in Credit Suisse’s Initial Disclosures would result in unreasonably cumulative and duplicative discovery, and a highly disproportionate burden and expense, as more than one individual filled the same role with respect to a Relevant Certificate.” See Mar. 22 Ltr. from B. Diessel to S. Strikis at 3. But the fact that more than one individual may have performed the same role on a securitization does not mean that both individuals will not have relevant information regarding that securitization. In any event, CUNA Mutual has no basis to determine which individual performing a given role is more relevant without reviewing documents in that person’s custody. Nonetheless, in the interests of compromise, CUNA Mutual will provisionally agree to provide a narrower list of specific custodians, as Credit Suisse requested in its March 22 letter. See Mar. 22 Ltr. from B. Diessel to S. Strikis at 2 (“[T]o the extent that CUNA can articulate a basis for specific individuals to be added as custodians, Credit Suisse is willing to meet and confer to address such issues.”). Specifically, CUNA Mutual proposes to include the following Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 3 of 7 Benjamin Diessel April 2, 2016 Page 3 categories of individuals as custodians:  The bulk due diligence manager for any bulk pool that contributed at least one loan to a securitization;  The trader or traders involved in each securitization, including but not limited to all traders listed on the working group list for each securitization;  The collateral analysts and structurers involved in each securitization, including but not limited to all such employees listed on the working group list for each securitization;  The transaction manager or managers involved in each securitization, including but not limited to all transaction managers listed on the working group list for each securitization; and  Any salesperson at Credit Suisse who had contact with CUNA Mutual regarding the securitizations, including but not limited to Jonathan Seed and Thomas Connors. In addition, to the extent not covered by the categories above, CUNA Mutual proposes to include the following twenty-four individuals as initial custodians:  Andrew Kimura  Michael Marriott  Michael Fallacara  Michael Daniel  Christopher Schoen  John Vibert  Patrick Gallagher  Alex Huang  Robert Sacco  Jason Nordyk  Eddie Othman  Peter Sack  Bruce Kaiserman  Paul Heckman  Henry Salomon  Cynthia Baird  Bertram Hill  Melissa Pensari  James Buccola  Joseph Quarto  Susan Tobin  Elizabeth Pavlov Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 4 of 7 Benjamin Diessel April 2, 2016 Page 4  Anne Lombardi  David Neugebauer This list of custodians is far narrower than the more than 300 individuals that Credit Suisse listed in its disclosures as possessing information relevant to its claims and defenses, and is tailored to individuals who were deeply involved with the acquisition and securitization of loans at Credit Suisse. If Credit Suisse so requests, CUNA Mutual is willing to meet and confer regarding the basis for its request to include each individual as a custodian. B. Credit Suisse Search Terms In its February 10, 2016 letter, Credit Suisse included an appendix of “Deal Terms” that it proposes to use as search terms in discovery. During the parties’ March 23 confer, you explained that these search terms are similar to ones that Credit Suisse has used in other RMBS cases, including National Credit Union Administration Board v. Credit Suisse Securities (USA) LLC, et al., No. 13-cv-6736 (S.D.N.Y.). After reviewing Credit Suisse proposal, CUNA Mutual is amenable to these search terms, with two caveats. First, CUNA Mutual reserves its right to modify these search terms as appropriate or necessary. Second, because these search terms will not capture certain relevant information, CUNA Mutual will require additional discovery from Credit Suisse using additional search terms or other protocols. This additional discovery includes, but is not limited to, the following:  Loan Files and Guidelines. As the parties discussed during the March 23 meet and confer, Credit Suisse’s production of relevant loan files and guidelines will occur outside of the search term protocol.  Loan-level Data Repositories. CUNA Mutual understands that Credit Suisse maintained loan-level data repositories that may contain information relevant to the securitizations at issue. CUNA Mutual intends to serve document requests on Credit Suisse requesting that Credit Suisse produce responsive data from these repositories. These repositories include, but may not be limited to, the LoanApprove database, the CWS database, the RPM database, and the PBS database.  Plaintiff-Specific Search Terms. Credit Suisse’s proposed search terms do not include any terms that are specific to the plaintiffs here. CUNA Mutual requests that Credit Suisse include additional search terms that will capture documents relevant to Credit Suisse’s communication with the plaintiffs during the relevant time period, such as “CMFG,” “CUNA,” “CUMIS,” “MEMBERS Life,” “Members Capital,” “MCA,” and “Prusha.” Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 5 of 7 Benjamin Diessel April 2, 2016 Page 5  Due Diligence Project Identifiers. In a February 25, 2016 letter, CUNA Mutual requested that Credit Suisse include certain vendor-specific Due Diligence Project Identifiers in its search terms. CUNA Mutual further requested that Credit Suisse “provide a list of any related Due Diligence Project Identifiers it is aware of.” See Feb. 25 Ltr. from S. Strikis to B. Diessel at 2. In its March 22 letter, Credit Suisse stated its refusal to add Due Diligence Project Identifiers to its search terms, but it did not address CUNA Mutual’s request that it provide a list of these identifiers. Please let us know whether Credit Suisse will provide such a list.  Prior Deposition Transcripts. As discussed in more detail below, CUNA Mutual requests that Credit Suisse produce transcripts from prior depositions of relevant individuals. The production of these transcripts should occur outside of the search protocol. C. Deposition Transcripts As CUNA Mutual explained in its March 17 letter, “significant efficiencies can be achieved by the production of all previous deposition transcripts and exhibits from RMBS matters, pursuant to the same language ordered by the three courts in the NCUA v. Credit Suisse cases.” See Mar. 17 Ltr. from S. Strikis to B. Diessel at 1. During the parties’ March 23 meet and confer, Credit Suisse stated that it would consider producing only a limited subset of deposition transcripts from prior cases. Credit Suisse further stated that any such agreement would be conditioned on (1) CUNA Mutual’s agreement to limit the number of depositions that it will take in this case, and (2) CUNA Mutual’s agreement to provide reciprocal discovery to Credit Suisse by producing prior deposition transcripts of its own witnesses. Given the prior order in NCUA v. Credit Suisse and the similarity of the claims at issue here, CUNA disagrees that Credit Suisse has any basis to limit its production of deposition transcripts from prior cases, or to condition its agreement on any concession by CUNA Mutual. Nonetheless, in the interests of compromise, CUNA Mutual will provisionally agree on a more limited production of deposition transcripts by Credit Suisse that is conditioned on certain additional agreements by CUNA Mutual. Specifically, CUNA Mutual proposes that Credit Suisse produce prior deposition transcripts (and exhibits) for the following individuals:  All Credit Suisse custodians (including all individuals proposed above);  All employees of third-party due diligence vendors that Credit Suisse retained to perform due diligence on the loans at issue, including but not limited to the employees of Clayton Holdings, Ocwen Loan Servicing, and Lydian Data Services; and  All employees of credit rating agencies. Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 6 of 7 Benjamin Diessel April 2, 2016 Page 6 In addition, CUNA Mutual will provisionally agree to limit the number of depositions that it will take in this case in the following ways: First, although the parties’ pre-trial statement permits CUNA Mutual to take up to 10 fact depositions, see Dkt. No. 53, CUNA Mutual will agree to reduce that number to seven depositions. Second, in order to avoid unduly burdening current and former Credit Suisse employees, CUNA Mutual will provisionally agree not to depose any current or former Credit Suisse employee who has been deposed in RMBS-related civil litigation more than twice previously, except by agreement of the parties or on motion to the Court for good cause. Good cause would include, inter alia, a showing that the proposed deponent had direct dealings with CUNA Mutual regarding the securitizations at issue or of diligence in attempts to obtain the information elsewhere. In the event that Credit Suisse refuses to permit a deposition on this ground, Credit Suisse would be required to produce the prior deposition transcripts of that individual. Finally, CUNA Mutual will provisionally agree to provide Credit Suisse with reciprocal discovery by producing transcripts of prior depositions of its own employees in RMBS-related litigation, as long as Credit Suisse also agrees to reduce the number of depositions it may take in this case from ten to seven. D. Loan File Reunderwriting Protocol CUNA Mutual proposed in its March 17 letter that the parties adopt the same Loan File Reunderwriting Protocol (“LFRP”) that the parties in NCUA v. Credit Suisse used to reunderwrite samples of loans. Credit Suisse stated during the parties’ March 23 meet and confer that it would consider this proposal. Please let us know whether Credit Suisse would be amenable to adopting a version of the LFRP in this case. * * * We ask that you please respond to this letter by within five business days. We also remain available to meet and confer about these issues at your convenience. Regards, Silvija Strikis Case: 3:14-cv-00249-wmc Document #: 154-2 Filed: 07/10/17 Page 7 of 7 Exhibit 3 Case: 3:14-cv-00249-wmc Document #: 154-3 Filed: 07/10/17 Page 1 of 5 +1-212-474-1177 bdiessel@cravath.com July 19, 2016 CMFG Life Insurance Company, CUMIS Insurance Society and MEMBERS Life Insurance Company v. Credit Suisse Securities (USA) LLC, No. 14-cv-249-WMC (W.D. Wis.) Dear Silvija: I write on behalf of Credit Suisse Securities (USA) LLC (“Credit Suisse”) in response to CMFG Life Insurance Co., CUMIS Insurance Society, Inc., and MEMBERS Life Insurance Co.’s (collectively, “CUNA”) July 7, 2016 letter, and further to CUNA’s April 15, 2016, April 28, 2016, May 27, 2016 and June 22, 2016 letters, and Credit Suisse’s February 10, 2016, February 24, 2016, March 22, 2016, April 8, 2016, May 19, 2016, June 20, 2016 and July 1, 2016 letters. I. Search Protocol Concerning CUNA Documents A. CUNA Search Terms and Custodians The parties have agreed that CUNA will produce documents using the custodians and repositories disclosed in Appendices A and C to CUNA’s April 15, 2016 letter, with the exception that Messrs. Hall and Christenson have been withdrawn as custodians. B. Date Ranges Applicable to CUNA Search Terms With respect to the date range applicable to the search of CUNA’s documents, the parties agree that the start date will be January 1, 2004. Although Credit Suisse believes that the date of CUNA’s filing of the action, April 3, 2014, is the most appropriate end date, in the interest of compromise and in light of the parties’ tolling agreements, Credit Suisse proposed in its July 1, 2016 letter that an end date of November 29, 2012-the relevant date for statute of limitations purposes for the Relevant Certificates-be applied to the Securitization-, CUSIP- and Originator-specific search terms pertaining to the Relevant Certificates. Credit Suisse further agreed in its July 1, Case: 3:14-cv-00249-wmc Document #: 154-3 Filed: 07/10/17 Page 2 of 5 2 2016 letter to an end date of September 16, 2011 for the following search terms: “Royal Bank of Scotland”, “RBS”, “RBSGC”, “RBSGCM” and “GCM” (the “RBS Terms”). In its July 7, 2016 letter, CUNA agreed to use November 29, 2012 as the end date in searching for documents using the Securitization Search Terms, CUSIP and Originators Terms pertaining to the Relevant Certificates. CUNA further agreed in its July 7, 2016 letter to use an end date of April 3, 2014 for all other search terms,1 except for the RBS Terms and the following additional search terms, to which an end date of September 16, 2011 would be applied: “Banc of America”, “Bank of America”, “BOAA”, “BofA”, “Morgan Stanley”, “UBS”, “J.P. Morgan”, “JPM”, “JPMorgan” and “Nomura”. CUNA has asserted that, as with documents containing the RBS Terms, documents containing the 10 additional terms dated after September 16, 2011 “are likely to be privileged”. (Letter from S. Strikis to B. Diessel (July 7, 2016).) Although CUNA still has made no effort to provide an objective basis in support of its assertions that relevant documents containing search terms dated after September 16, 2011 are likely to be privileged, in the interest of compromise, Credit Suisse agrees to an end date of September 16, 2011 for the 10 additional terms and the RBS Terms. II. CUNA’s Retention of ESI In its July 1, 2016 letter, Credit Suisse raised a number of questions and proposals pertaining to the January 2011 erasure of CUNA’s email system backup and the 2009 and 2010 purges of the personal network drives of multiple proposed custodians, discussed in CUNA’s May 27, 2016 letter. In addition to the purported remedial measures proposed in CUNA’s May 27, 2016 letter, Credit Suisse proposed that CUNA agree to the following so that Credit Suisse may determine, to the extent reasonably possible, the relevance of the documents CUNA has destroyed and the measure of prejudice to Credit Suisse resulting from its inability to access those documents: (1) CUNA will produce prior to September 2016 a Rule 30(b)(6) witness on document retention, gathering and production; (2) CUNA will allow Credit Suisse a reasonable number of additional fact depositions pertaining to CUNA’s failure to retain relevant documents; and (3) the foregoing depositions will not count toward Credit Suisse’s limit of five fact depositions. In its July 7, 2016 letter, CUNA proposed that the parties revisit these proposals after CUNA has produced transcripts and exhibits from depositions taken in the RBS litigation, “many of which concern CUNA’s retention of ESI”. Credit Suisse requests that CUNA prioritize the production of these transcripts and exhibits, and advise when Credit Suisse can expect this production. Additionally, Credit Suisse requests that CUNA advise when it expects to provide responses to the 12 questions posed in Credit Suisse’s July 1, 2016 letter regarding various aspects of CUNA’s retention of ESI. 1 These other search terms are the Securitization-, CUSIP- and Originator-specific search terms relevant to the two Third-Party Certificates and all Other Terms listed in Appendix G to Credit Suisse’s June 20, 2016 letter. Case: 3:14-cv-00249-wmc Document #: 154-3 Filed: 07/10/17 Page 3 of 5 3 III. Search Protocol Concerning Credit Suisse Documents The parties are in agreement regarding the search protocol applicable to Credit Suisse’s document production regarding the Relevant Certificates. As discussed during the parties’ July 1, 2016 meet and confer, Credit Suisse will update CUNA once it has determined which individuals would be appropriate custodians for the Third-Party Certificates. IV. Deposition Transcripts During the parties’ July 1, 2016 meet and confer, the parties agreed that they would negotiate separately Credit Suisse’s production of deposition transcripts and exhibits for (1) current and former Credit Suisse employees, and (2) employees of third- party due diligence firms and rating agencies. (Letter from S. Strikis to B. Diessel (July 7, 2016).) CUNA stated during this meet and confer that it would agree to limit the number of fact depositions it takes in this case to five, provided that Credit Suisse produce deposition transcripts and exhibits for the agreed Credit Suisse custodians and 12 additional current and former employees.2 Although this demand is overbroad in that it sweeps in many transcripts from completely unrelated actions, in the interest of compromise, Credit Suisse agrees to produce transcripts and exhibits from depositions in RMBS matters for all Credit Suisse custodians and the 12 additional individuals. Regarding the deposition transcripts and exhibits for employees of third- party due diligence firms and rating agencies, CUNA most recently proposed that Credit Suisse “produce RMBS-related deposition transcripts and exhibits in its possession for the following five individuals”: Vicki Beal, Diane Johnson, Ronald Szukala, Sharif Mahdavian and Debashish Chatterjee. (Letter from S. Strikis to B. Diessel (July 7, 2016).) Credit Suisse is considering this proposal and will respond in a separate letter. * * * 2 These 12 additional individuals are Cynthia Baird, James Buccola, Margaret Dellafera, Patrick Gallagher, Keith Jones, David Neugebauer, Joseph Quarto, Henry Salomon, Gary Timmerman, Susan Tobin, John Vibert and Paul Heckman. Case: 3:14-cv-00249-wmc Document #: 154-3 Filed: 07/10/17 Page 4 of 5 4 Credit Suisse is available to meet and confer further on the above topics or otherwise. Sincerely, /s/ Benjamin H. Diessel Benjamin H. Diessel Silvija A. Strikis, Esq. Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C. Sumner Square 1615 M Street, N.W., Suite 400 Washington, DC 20036-3215 BY EMAIL Case: 3:14-cv-00249-wmc Document #: 154-3 Filed: 07/10/17 Page 5 of 5 Exhibit 4 To CUNA’s Memorandum in Support of its Motion to Compel See ECF 152 Case: 3:14-cv-00249-wmc Document #: 154-4 Filed: 07/10/17 Page 1 of 1 Exhibit 5 To CUNA’s Memorandum in Support of its Motion to Compel See ECF 153 Case: 3:14-cv-00249-wmc Document #: 154-5 Filed: 07/10/17 Page 1 of 1 Exhibit 6 Case: 3:14-cv-00249-wmc Document #: 154-6 Filed: 07/10/17 Page 1 of 5 1 Bell, Chad From: Hector Valdes Sent: Friday, January 13, 2017 3:25 PM To: Bell, Chad Cc: Bermel, Jeanine; Moskowitz, Lauren; Forrest, Michael; Klenov, Michael; Reynolds, Michael; 'Patrick Foley'; Clary, Richard; Berezney, Steve; Silvia Strikis; Schultz, Tom Subject: Re: CUNA Mutual v. Credit Suisse - Status of Production of Deposition Transcripts and Exhibits Chad, We have considered your request that Credit Suisse produce RMBS-related transcripts for Vicki Beal, Diane Johnson, Ronald Szukala, Sharif Mahdavian and Debashish Chatterjee. Although Credit Suisse maintains that the request is overbroad and sweeps in transcripts from unrelated actions involving unrelated deals, Credit Suisse is willing, in the interest of compromise, to produce transcripts from other Credit Suisse civil RMBS litigations for Vicki Beal, Sharif Mahdavian and Debashish Chatterjee, subject to providing any required notice to third parties associated therewith, if doing so will resolve your request for deposition transcripts of third party vendors and ratings agencies. For the reasons discussed during our December 15, 2016 meet and confer, however, Credit Suisse is not willing to produce transcripts of the depositions of Ms. Johnson and Mr. Szukala. Among other things, the serious evidence of improper conduct by MBIA's counsel in eliciting testimony from these and other witnesses in the MBIA matter, which the court found gave rise to a "reasonable suspicion of witness dissembling", renders their testimony entirely unreliable and unduly prejudicial. See Decision and Order, MBIA Ins. Corp. v. Credit Suisse Securities (USA) LLC, No. 603751/2009, at 5. Finally, as you know, Credit Suisse's June 20, 2016 offer to produce seven specific deposition transcripts from cases involving one or more overlapping securitizations was a compromise proposal intended to satisfy CUNA Mutual's overbroad request at the time for all third party vendor and credit rating agency transcripts in Credit Suisse's possession. CUNA Mutual rejected that compromise and instead insisted on production of transcripts for the five individuals referenced above. See July 7, 2016 Letter from S. Strikis to B. Diessel, at 7. Accordingly, Credit Suisse does not intend to reopen earlier stages of the parties' document production negotiations and does not intend to produce those seven transcripts at this time, except to the extent that they are encompassed in the proposal set forth above to produce the transcripts of Vicki Beal, Sharif Mahdavian and Debashish Chatterjee. Please let me know whether CUNA Mutual intends to accept this offer. Best regards, Hector Hector J. Valdes Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1808 From: Hector Valdes/NYC/Cravath To: "Bell, Chad" Cc: "Bermel, Jeanine" , "Moskowitz, Lauren" , "Forrest, Michael" , "Klenov, Michael" , "Reynolds, Michael" , "'Patrick Foley'" , "Clary, Richard" Case: 3:14-cv-00249-wmc Document #: 154-6 Filed: 07/10/17 Page 2 of 5 2 , "Berezney, Steve" , Silvia Strikis , "Schultz, Tom" Date: 01/09/2017 06:07 PM Subject: Re: CUNA Mutual v. Credit Suisse - Status of Production of Deposition Transcripts and Exhibits Chad, We expect to be in a position to produce this week a significant number of the transcripts from other civil RMBS matters for the Credit Suisse custodians and 12 additional Credit Suisse individuals discussed in the letters referenced in your email. For certain of those transcripts, because one or more of the exhibits consist of information designated confidential by third parties, we must provide notice to those third parties and an opportunity to object before we produce the transcripts. We are currently engaged in that notice process and, barring objection, expect to produce the remaining transcripts later this month. As a reminder, our agreement to produce transcripts for these Credit Suisse witnesses is contingent on CUNA Mutual's commitment to limit the number of fact depositions it takes in this case to five. See 7/19/16 B. Diessel Letter to S. Strikis at 3. We will also get you an answer this week on your request that Credit Suisse produce transcripts and exhibits for certain third party vendors / credit rating agency individuals, as specified in your email. Best regards, Hector Hector J. Valdes Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1808 From: "Bell, Chad" To: "'Hector Valdes'" , "Schultz, Tom" , "'bdiessel@cravath.com'" Cc: "Moskowitz, Lauren" , "Forrest, Michael" , "Klenov, Michael" , "Reynolds, Michael" , "'Patrick Foley'" , "Clary, Richard" , "Berezney, Steve" , Silvia Strikis , "Bermel, Jeanine" Date: 01/05/2017 03:48 PM Subject: CUNA Mutual v. Credit Suisse - Status of Production of Deposition Transcripts and Exhibits Ben, I’m writing concerning the status of Credit Suisse’s production of deposition transcripts and exhibits. In the attached July 19, 2016 letter, Credit Suisse agreed that it would produce deposition transcripts and exhibits from RMBS matters for all Credit Suisse custodians and 12 additional individuals (all of who are listed at the bottom of this email). CUNA Mutual has reviewed Credit Suisse’s productions to date (Bates CSCUNA000000001 - CSCUNA002483947), and has not identified any deposition transcripts or deposition exhibits in those productions. Please let us know when you plan to produce these transcripts and deposition exhibits. Given that these transcripts are readily available to Credit Suisse and its counsel and can be produced easily, we request that you produce them no later than Wednesday, January 11 th . In the same July 19, 2016 letter, Credit Suisse indicated it was “considering” CUNA Mutual’s proposal that Credit Suisse produce RMBS-related deposition transcripts and exhibits in its possession for an additional five third party vendors/credit rating agency individuals: Vicki Beal, Diane Johnson, Ronald Szukala, Sharif Mahdavian, and Debashish Chatterjee. At a subsequent meet-and- Case: 3:14-cv-00249-wmc Document #: 154-6 Filed: 07/10/17 Page 3 of 5 3 confer, you requested that CUNA Mutual reconsider Credit Suisse’s proposal from your June 20, 2016 letter regarding the production of third-party vendors and credit rating agencies, which identified a total of seven specific deposition transcripts from “overlapping securitizations” for six individuals (Vicki Beal, Debashish Chatterjee, Jacqueline Doty, Leslie Meyer, Waqas Shaikh, and Stanley Wu) that Credit Suisse would be willing to produce. We have considered your request, and while CUNA Mutual agrees Credit Suisse should produce the relevant and responsive seven transcripts and associated exhibits identified in its June 20, 2016 letter (and requests that Credit Suisse produce these seven transcripts and their associated exhibits by Wednesday, January 11 th ), CUNA Mutual also believes that Credit Suisse has not identified any good-faith, sufficient basis to withhold producing all RMBS-related transcripts and exhibits in Credit Suisse’s possession for the five third party individuals that CUNA Mutual originally requested. Please advise by Monday, January 9, 2017 whether Credit Suisse will produce all RMBS-related deposition transcripts and exhibits for Vicki Beal, Diane Johnson, Ronald Szukala, Sharif Mahdavian, and Debashish Chatterjee. Sincerely, Chad Bell • Custodians Credit Suisse agreed to produce all RMBS-related deposition transcripts and exhibits for: • Brian Chin • Thomas Connors • Patrick Dodman • Michael Daniel • Michael Fallacara • Alex Huang • Bertram Hill • Bruce Kaiserman • Andrew Kimura • Timothy Kuo • Michael Marriott • Jason Nordyk • Eddie Othman • Rachel Romero • Robert Sacco • Peter Sack • Christopher Schoen • Jonathan Seed • Kevin Steele • Twelve Additional Credit Suisse employees that Credit Suisse agreed to produce all RMBS-related deposition transcripts and exhibits for: • Cynthia Baird • James Buccola • Margaret Dellaferra • Patrick Gallagher • Keith Jones • David Neugebauer • Joseph Quarto • Henry Salomon • Gary Timmerman • Susan Tobin • John Vibert • Paul Heckman Chad Bell Korein Tillery, LLC Case: 3:14-cv-00249-wmc Document #: 154-6 Filed: 07/10/17 Page 4 of 5 4 205 North Michigan Avenue Suite 1950 Chicago, IL 60601 312-641-9750 ---------------------------- This message is from a law firm and may contain privileged or confidential information for the sole use of the intended recipient(s). If you believe that you have received this email in error, please notify the sender immediately and delete it from your system. If you have received this email in error, you do not have permission to forward, print, copy or distribute or use the information in this message. ---------------------------- [attachment "2016-07-19, Letter from B. Diessel to S. Strikis.pdf" deleted by Hector Valdes/NYC/Cravath] [attachment "June 20, 2016 Letter from Credit Suisse.pdf" deleted by Hector Valdes/NYC/Cravath] Case: 3:14-cv-00249-wmc Document #: 154-6 Filed: 07/10/17 Page 5 of 5 Exhibit 7 Case: 3:14-cv-00249-wmc Document #: 154-7 Filed: 07/10/17 Page 1 of 5 1 Bell, Chad From: Hector Valdes Sent: Thursday, May 4, 2017 10:00 PM To: Bell, Chad Cc: Frederick, David; GutzlerGreg; Zelcs, George; Craig, John; Lauren Moskowitz; Forrest, Michael; Klenov, Michael; Michael Reynolds; Richard Clary; Attaway, Scott; Berezney, Steve; Silvia Strikis; Schultz, Tom; SpicerTami Subject: RE: CUNA v. Credit Suisse: Interrogatory No. 13 and RPM/PBS Databases Chad, With respect to the remaining items in your email below, Credit Suisse responds as follows: First, Credit Suisse's agreement to produce transcripts from other civil RMBS matters (see Jan. 9, 2017 Email from H. Valdes to C. Bell) did not encompass depositions taken in regulatory investigations. Nonetheless, in the interest of compromise, Credit Suisse is willing to produce the seven SEC transcripts and two NYAG transcripts (and exhibits) referenced in your email below. Second, with respect to the July 10, 2008 deposition of Margaret Dellafera referenced in your email, that transcript was not within the scope of Credit Suisse's agreement to produce transcripts from other civil RMBS matters. The case DLJ Mortgage Capital, Inc. v. Fairmont Funding, Ltd., was not an RMBS matter and does not relate to securities of any kind. Therefore, Credit Suisse does not believe this transcript should be produced in this action. Third, Credit Suisse confirms that it has produced all transcripts of prior RMBS testimony that Credit Suisse has for Brian Chin, Bertram Hill, and Jonathan Seed. Mr. Hill referenced an interview he had with the New York Attorney General's office in the testimony CUNA cited in its April 21, 2017 email, but there was no transcript of that interview and Credit Suisse was not even present at that interview. Likewise, Credit Suisse does not have any transcript of the unspecified "SEC meeting" referenced in Mr. Chin's testimony. Finally, none of Mr. Chin, Mr. Hill or Mr. Seed has been deposed subsequent to the depositions for which Credit Suisse has produced transcripts in this action. Fourth, Credit Suisse does not agree to produce the depositions of Diane Johnson and Ronald Szukala, for reasons previously stated, including during our December 15, 2016 meet and confer and in my January 13, 2017 email. Finally, Credit Suisse is preparing a signature page with verification of Credit Suisse's latest interrogatory responses and expects to be able to provide it next week. Credit Suisse is available to meet and confer about these issues. Best regards, Hector Hector J. Valdes Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1808 From: "Bell, Chad" To: "'Hector Valdes'" , "Forrest, Michael" , Silvia Strikis , "Klenov, Michael" , "Attaway, Scott" , "Berezney, Steve" , "Craig, John" , "Frederick, David" , GutzlerGreg , SpicerTami , "Zelcs, George" , "Schultz, Tom" Case: 3:14-cv-00249-wmc Document #: 154-7 Filed: 07/10/17 Page 2 of 5 2 Cc: Richard Clary , Michael Reynolds , Lauren Moskowitz Date: 05/02/2017 02:33 PM Subject: RE: CUNA v. Credit Suisse: Interrogatory No. 13 and RPM/PBS Databases Hector: CUNA Mutual is still awaiting a response regarding: • Credit Suisse’s position regarding providing the data specified in my email below from the RPM and PBS databases for loans included in the RMBS at issue; • A signature page/verification for Credit Suisse’s latest supplemental interrogatory responses (as requested in my April 25, 2017 email); • A response to my April 27, 2017 email regarding the deposition availability of Donna McKeever, and request for transcripts (and related exhibits) for all of her past testimony in RMBS-related matters; • A response to my April 21, 2017 email requesting past deposition testimony from Brian Chin, Bertram Hill, and Jonathan Seed (while CUNA Mutual is not proceeding with deposing Mr. Chin at this time, we still believe his past testimony should be produced). Related to this final point, it is CUNA Mutual’s position (as articulated in my April 5, 2017 letter) that the parties have reached an impasse regarding Credit Suisse’s production of certain deposition transcripts (and related exhibits) of Credit Suisse employees/custodians that Credit Suisse continues to refuse to produce. I have listed the transcripts we believe are still being improperly withheld below- please advise whether Credit Suisse continues to refuse to produce these transcripts. (Note: this list is only those transcripts CUNA Mutual is currently aware of that have not been produced; to the extent there are other transcripts of agreed-upon Credit Suisse employees/custodians that are not listed that have not been produced by Credit Suisse, they too should be produced per the parties’ agreement). Sincerely, Chad Bell RMBS-Related Deposition Transcripts CUNA Mutual is Currently Aware of That Are Being Withheld by Credit Suisse: • October 13, 2011 Deposition of Margaret Dellafera in In re: Credit Suisse Group AG, United States Securities and Exchange Commission, File No. HO-11546; • August 23, 2011 Deposition of Patrick Dodman in In re: Certain Credit Suisse RMBS Offerings, United States Securities and Exchange Commission, File No. HO-11465-A; • March 15, 2012 Deposition of Patrick Dodman in In re: Certain Credit Suisse RMBS Offerings, United States Securities and Exchange Commission, File No. HO-11468-A; • February 2, 2012 Deposition of Michael Marriott in In re: Credit Suisse Group AG, United States Securities and Exchange Commission, File No. HO-11546-D-3243; • November 16, 2011 Deposition of Robert Sacco in In re: Credit Suisse Group AG, United States Securities and Exchange Commission, File No. HO-11546; • November 3, 2011 Deposition of Kevin Steele in In re: Credit Suisse Group AG, United States Securities and Exchange Commission, File No. HO-11546-A; • November 29, 2011 Deposition of Gary Timmerman in In re: Certain Credit Suisse RMBS Offerings, United States Securities and Exchange Commission, File No. HO-11468-A; • July 10, 2008 Deposition of Margaret Dellafera in DLJ Mortgage Capital, Inc. v. Fairmont Funding, LTD (Supreme Court of the State of New York, New York County); • December 8, 2013 Deposition of Ronald Szukala in MBIA Ins. Corp. v. Credit Suisse Secuirties (USA), Index No. 603751/09 (Supreme Court of New York, County of New York); • August 15, 2012 Deposition of Diane Johnson in MBIA Ins. Corp. v. Credit Suisse Secuirties (USA), Index No. 603751/09 (Supreme Court of New York, County of New York); • May 17, 2014 Deposition of Diane Johnson in Cambridge Place Investment Mgmt. v. Morgan Stanley & Co., Inc., Civil Action Nos. 10-2741-BLS1 and 11-0555-BLS1 (Mass. Superior Ct., Suffolk); • August 28, 2012 New York Attorney General’s Deposition of Michael Daniel • New York Attorney General’s Deposition of Robert Sacco Case: 3:14-cv-00249-wmc Document #: 154-7 Filed: 07/10/17 Page 3 of 5 3 Chad Bell Korein Tillery, LLC 205 North Michigan Avenue Suite 1950 Chicago, IL 60601 312-641-9750 ---------------------------- This message is from a law firm and may contain privileged or confidential information for the sole use of the intended recipient(s). If you believe that you have received this email in error, please notify the sender immediately and delete it from your system. If you have received this email in error, you do not have permission to forward, print, copy or distribute or use the information in this message. ---------------------------- From: Bell, Chad Sent: Monday, April 24, 2017 8:26 PM To: 'Hector Valdes'; Forrest, Michael; Silvia Strikis; Klenov, Michael; Attaway, Scott; Berezney, Steve; Craig, John; Frederick, David; GutzlerGreg; SpicerTami; Zelcs, George; Schultz, Tom Cc: Richard Clary; Michael Reynolds; Lauren Moskowitz Subject: CUNA v. Credit Suisse: Interrogatory No. 13 and RPM/PBS Databases [JP-IWKT01.FID159118] Hector, We have reviewed Credit Suisse’s April 21, 2017 Supplemental Interrogatory Responses and have identified several deficiencies in Credit Suisse’s response to Interrogatory No. 13. First, Appendix 13 references a number of documents that, to our knowledge, have not been produced to CUNA Mutual. The last production CUNA Mutual received from Credit Suisse was CS Production 14 on March 9, 2017, and ended with Bates Number CSCUNA002572326; Appendix 13 refers to documents with Bates numbers beyond that number. We would request that Credit Suisse produce these additional documents by April 28, 2017. Second, the supplemental response to Interrogatory No. 13 remains deficient because it does not provide the RPM database information referenced in CUNA Mutual’s document requests as well as my February 8, 2017 and April 5, 2017 letters. As my April 5, 2017 letter stated, CUNA Mutual expected Credit Suisse’s amended interrogatory responses to include information identifying “1) the loans that were subject to … quality control; (2) when the… quality control was conducted; and (3) the final results of those reviews (including whether Credit Suisse reached a final determination different from that of its vendors).” CUNA Mutual also identified in that April 5 letter specific fields that could be exported from the RPM/PBS databases into an Excel spreadsheet that would provide the needed information: loan_no, QC_Status, QC_Result, mod_time, risk_class, risk_class_desc., issue_type, issue_summary, and QC_comment. Moreover, it seems unlikely that only 296 loans out of all of the loans included in the six RMBS at issue ever had any quality control review performed upon them, as indicated by Appendix 13 - a rate of 0.19%. Credit Suisse’s quality control manual specified that Credit Suisse’s quality control department would sample a minimum of 3-5% of loans in its inventory, along with additional loans on a discretionary basis. If that was actually done, it is improbable that only 296 loans in the six RMBS at issue had any quality control performed on them. Further, Appendix 13 only identifies 4 loan pools (out of approximately 260 or so total loan pools backing the deals at issue) that quality control was conducted on. Is it Credit Suisse’s position that these were the only four loan pools subject to quality control review? Appendix 13 also cites a Hanover report (CSCUNA000893317) as containing QC results for two loans (403022963 and 500406764) backing the SLGs at issue that are mentioned specifically in the report, yet that report also cites (on page 9) 256 loans with “outstanding underwriting requirements” that are not identified by loan number. That same Hanover report also notes 186 loans with missing documents (page 8), 44 loans with data integrity issues (page 7), 43 loans with valuation issues (page 11), and 74 loans with identified fraud - again without identifying any of these loans individually. Results for all of these unidentified loans that had QC performed on them would, presumably, be captured in the RPM/PBS databases that CUNA Mutual requested, and should be produced. Case: 3:14-cv-00249-wmc Document #: 154-7 Filed: 07/10/17 Page 4 of 5 4 It appears from our review that Credit Suisse’s response to Interrogatory No. 13 involved searching quality control summary reports to determine if a loan number was mentioned that matched to a loan in the SLGs at issue. While a step in the right direction, this effort is certainly not the same thing as capturing all loans that were subject to quality control, as would occur by pulling data from RPM/PBS as CUNA Mutual has requested from the beginning of this process. CUNA Mutual therefore requests that Credit Suisse confirm by Friday, April 28, 2017 that it will produce the RPM/PBS data from the fields specified in my April 5, 2017 letter for all loans backing the RMBS at issue. Given the dramatically reduced scope of this request, CUNA Mutual does not believe Credit Suisse’s past, unsubstantiated assertions regarding burden and cost are applicable. Indeed, Credit Suisse’s own documents indicate that it is relatively easy to pull information from the RPM database in short order (see, e.g., CSCUNA000828388-89, where a Credit Suisse employee was able to produce a report from RPM within 5 hours in response to a request seeking “how many new LBL and Mini Bulk Clients have been approved so far this Year”). Given upcoming deadlines in this case, we request a response by close of business on Friday, April 28. If Credit Suisse does not commit to producing the requested RPM/PBS data by that date, CUNA Mutual will seek relief from the Court on Monday, May 1. Sincerely, Chad Bell From: Hector Valdes [mailto:hvaldes@cravath.com] Sent: Friday, April 21, 2017 10:48 PM To: Forrest, Michael; Silvia Strikis; Klenov, Michael; Attaway, Scott; Berezney, Steve; Craig, John; Frederick, David; GutzlerGreg; SpicerTami; Zelcs, George; Schultz, Tom; Bell, Chad Cc: Richard Clary; Michael Reynolds; Lauren Moskowitz Subject: CUNA v. Credit Suisse Counsel: Please find attached Credit Suisse's first supplemental responses and objections to CUNA's first and second sets of interrogatories. The appendices discussed therein have been uploaded to the following FTP. GlobalScape URL = https://fileshare.cravath.com/ GlobalScape Username = doc#CUNA@04212017 The password will be sent by separate correspondence. Hector J. Valdes Cravath, Swaine & Moore LLP 825 Eighth Avenue New York, NY 10019 (212) 474-1808 Chad Bell Case: 3:14-cv-00249-wmc Document #: 154-7 Filed: 07/10/17 Page 5 of 5 Exhibit 8 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 1 of 9 FILED: NEW YORK COUNTY CLERK 10/04/2013 INDEX NO. 603751/2009 NYSCEF DOC. NO. 587 RECEIVED NYSCEF: 10/04/2013Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 2 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 3 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 4 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 5 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 6 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 7 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 8 of 9 Case: 3:14-cv-00249-wmc Document #: 154-8 Filed: 07/10/17 Page 9 of 9